Citation Nr: 0801589
Decision Date: 01/15/08 Archive Date: 01/29/08
DOCKET NO. 06-17 787 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an effective date prior to March 24, 2005,
for the grant of service connection for diabetes mellitus,
type II.
2. Whether new and material evidence has been received to
reopen a claim of service connection for left ear hearing
loss, and if so, whether the reopened claim should be
granted.
3. Entitlement to service connection for coronary artery
disease, to include as secondary to diabetes mellitus, type
II.
REPRESENTATION
Appellant represented by: Florida Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. Donnelly, Associate Counsel
INTRODUCTION
The veteran served on active duty with the United States Army
from April 1969 to March 1971, to include a tour of duty in
Vietnam from April 1970 to March 1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2005 rating decision by the
St. Petersburg, Florida, Regional Office (RO) of the
Department of Veterans Affairs (VA), which granted service
connection for type II diabetes mellitus, rated 20 percent
from March 24, 2005; and denied service connection for left
ear hearing loss and for coronary artery disease as secondary
to diabetes. Service connection for right ear hearing loss
was granted; this issue is not on appeal. A Notice of
Disagreement was received in January 2006, and a Statement of
the Case (SOC) was issued in April 2006. The veteran
perfected his appeal with the filing of a VA Form 9, Appeal
to Board of Veterans' Appeals, in May 2006. In July 2007,
the veteran testified before the undersigned at a personal
hearing held at the RO.
As was noted above, service connection for right ear hearing
loss was granted in the November 2005 rating decision, based
on a reopened claim of service connection for bilateral
hearing loss. The previous claim for bilateral hearing loss,
denied in June 1971, is below referred to in terms solely of
the left ear, as that is the issue currently on appeal here.
The issues of service connection for coronary artery disease,
to include as secondary to diabetes mellitus, type II, and
of left ear hearing loss are addressed in the REMAND portion
of the decision below and are REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The veteran was diagnosed with diabetes mellitus, type
II, in or before February 1996; he was prescribed oral
medication for diabetes in January 1998.
2. Diabetes mellitus, type II, was named a presumptive
condition for herbicide exposed veterans effective May 8,
2001.
3. Service connection for left ear hearing loss was denied
in a June 4, 1971, rating decision on the ground that there
was no current evidence of a hearing loss disability. The
decision was not appealed and became final in June 1972.
4. Evidence received since the June 1971 denial of service
connection for left ear hearing loss has not been previously
considered by agency decisionmakers, is not redundant or
cumulative, relates to an unestablished fact, and raises a
reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. An earlier effective date of March 24, 2004, for the
grant of service connection for diabetes mellitus, type II,
is warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R.
§§ 3.114, 3.400 (2007).
2. New and material evidence has been received to reopen the
claim of service connection for left ear hearing loss.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duties to Assist and Notify
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
The United States Court of Appeals for Veterans Claims
(Court) recently addressed VA's duty to notify and assist in
cases involving claims to reopen previously denied matters.
See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board
finds, however, that there is no need to discuss the impact
of the VCAA on the matters resolved in the veteran's favor in
the decision below.
Effective Date of Service Connection for Diabetes Mellitus,
Type II
The effective date of an award based on an original claim for
compensation or a claim reopened after a final disallowance
will be the date of receipt of the claim or the date
entitlement arose, whichever is later. If the claim is
received within one year of separation from service, the
effective date is the day following separation from service
or date entitlement arose, otherwise the date of claim or the
date entitlement arose, whichever is later. 38 U.S.C.A.
§ 5110(b) (West 2002); 38 C.F.R. § 3.400(b)(2).
Under certain circumstances, a retroactive grant of service
connection is warranted. Regulations provide that where
entitlement to a benefit is shown as a result of a
liberalizing change in law, such as the addition of type II
diabetes to the list of presumptive conditions for herbicide
exposed veterans under 38 C.F.R. § 3.309(e), an earlier
effective date is assignable. The claimed disability must
have been present as of the date of the liberalizing change
to warrant application of the retroactive effective date
provision. Generally, the earlier effective date is one year
prior to receipt of the claim, or the date of change in law,
whichever is later. 38 C.F.R. § 3.114. Diabetes mellitus,
type II, was named a presumptive disease for herbicide
exposed veterans on May 8, 2001.
The veteran contended at his July 2007 personal hearing that
because he was first diagnosed with diabetes in 1996, and
placed on oral medications in 1998, an earlier effective date
is warranted.
The veteran separated from service in March 1971. Private
treatment records from Dr. Sa reveal a diagnosis of diabetes
mellitus in February 1996. The veteran confirms that this is
the earliest date of diagnosis. The private treatment
records also reveal that because diet was ineffective in
controlling the diabetes, an oral hypoglycemic agent was
prescribed in January 1998. He first formally claimed
disability compensation for diabetes mellitus, type II, on
March 24, 2005.
The Board finds that 38 C.F.R. § 3.114 is applicable here.
Medical records clearly establish that the veteran was
diagnosed with diabetes mellitus, type II, prior to May 8,
2001, and that he was using an oral hypoglycemic at that
time. Entitlement to the benefit sought is therefore shown
as of the date of liberalizing change in law. An earlier
effective date of service connection for diabetes mellitus,
type II, associated with herbicide exposure, is warranted.
Regulations provide that service connection should be
established one year prior to the date of receipt of claim
because the claim was filed more than one year after the
liberalizing change. 38 C.F.R. § 3.114.
New and Material Evidence to Reopen a Claim of Service
Connection for Left Ear Hearing Loss
Although the RO reopened the claim of service connection for
left ear hearing loss in November 2005, the Board is required
to first consider whether new and material evidence had been
presented before the merits of claim can be considered. The
Board can make an initial determination as to whether
evidence is "new and material." See Jackson v. Principi,
265 F.3d 1366 (Fed. Cir. 2001).
Governing regulations provide that an appeal consists of a
timely filed notice of disagreement in writing and, after a
statement of the case has been furnished, a timely filed
substantive appeal. 38 C.F.R. § 20.200. Rating actions from
which an appeal is not timely perfected become final. 38
U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In general, Board
decisions which are unappealed become final. 38 U.S.C.A.
§ 7104; 38 C.F.R. § 20.1100.
A final decision cannot be reopened unless new and material
evidence is presented. 38 U.S.C.A. § 5108. The Secretary
must reopen a finally disallowed claim when new and material
evidence is presented or secured with respect to that claim.
Knightly v. Brown, 6 Vet. App. 200 (1994).
For claims filed on or after August 29, 2001, new evidence
means existing evidence not previously submitted to agency
decisionmakers. Material evidence means existing evidence
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be
neither cumulative nor redundant of the evidence of record at
the time of the last prior final denial of the claim sought
to be reopened and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a).
Only evidence presented since the last final denial on any
basis (either upon the merits of the case, or upon a previous
adjudication that no new and material evidence has been
presented) will be evaluated in the context of the entire
record. Evans v. Brown, 9 Vet. App. 273 (1996).
In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the
United States Court of Appeals for the Federal Circuit noted
that new evidence could be sufficient to reopen a claim if it
could contribute to a more complete picture of the
circumstances surrounding the origin of a claimant's injury
or disability, even where it would not be enough to convince
the Board to grant a claim.
For the purpose of establishing whether new and material
evidence has been received, the credibility of the evidence,
but not its weight, is to be presumed. Justus v. Principi,
3 Vet. App. 510, 513 (1992).
At the time of the June 1971 decision which denied service
connection for both left and right ear hearing loss, the
evidence of record consisted of some service treatment
records and a VA examination report. Although complete
service treatment records were requested, the service
department was able to provide only records from the aid
station in Vietnam and the separation examination; the
service certified that the entry examination was not
available. The VA examination report showed no hearing loss
disability.
Since the June 1971 denial, VA has received additional VA
treatment records, including an October 2005 audiological
evaluation, which demonstrate a bilateral hearing loss
disability for VA purposes. 38 C.F.R. § 3.385. The
reviewing audiologist also discussed service and post-service
noise exposure and offered opinions on the relationship of
current findings to service. This evidence is clearly new
and material, as it directly addresses all elements of a
claim for service connection, including unestablished facts,
and has not been previously considered. The claim of service
connection for left ear hearing loss is reopened.
Adjudication of the veteran's claim does not end with the
determination that new and material evidence has been
received. The matter must now be addressed on a de novo
basis. For the reasons detailed in the REMAND section below,
additional development is required for a full and fair
adjudication of the underlying service connection claim.
ORDER
An earlier effective date of service connection for diabetes
mellitus, type II, of March 24, 2004 is granted.
New and material evidence having been received, the claim of
entitlement to service connection for left ear hearing loss
is reopened. To this extent only the benefit sought on
appeal is allowed.
REMAND
Left Ear Hearing Loss
In a June 1971 rating decision, the RO denied service
connection for bilateral hearing loss, based on a finding
that there was no current hearing loss disability. The
veteran sought to reopen his claim in March 2005, when he
again claimed service connection for bilateral hearing loss
due to combat noise exposure in Vietnam. Service connection
for the right ear hearing loss was granted, while the left
ear hearing loss was denied service connection in the
November 2005 decision.
A VA audiological examination in October 2005 revealed
current bilateral hearing loss disability for VA purposes, as
defined in 38 C.F.R. § 3.385. The examiner noted a history
of exposure to combat noise, including the explosion of a
satchel charge which resulted in a punctured right eardrum.
The examiner also noted occupational noise exposure since
service as a truck driver and worker in a lighting factory,
and recreational noise exposure target shooting on
approximately 10 occasions since service. No hearing
protection was reportedly used.
The examiner related right ear hearing loss to in-service
noise exposure. She stated that a mild hearing loss was
present on the right at separation, and there was evidence of
in-service noise exposure due to combat. She also related
bilateral tinnitus to military noise exposure. The Board
notes that she does not indicate that there was tinnitus in
service.
Left ear hearing loss, however, was not related to service by
the examiner. She stated that left ear hearing was normal at
separation, and that there was "significant noise history"
after leaving service, citing occupational and recreational
noise exposure.
The veteran alleges that the examiner's conclusions are
inconsistent and must be revisited. The Board agrees. While
service treatment records do show a hearing loss disability
of the right ear at separation, VA examination two months
later shows improvement and no hearing loss disability on the
right. It does show worsening hearing acuity on the left,
however. Further, both ears were subject to the same
acoustic trauma from military, occupational, and recreational
noise; the examiner fails to adequately explain why one ear
was affected by military noise, and the other by civilian
noise, especially in light of her diagnosis of bilateral
tinnitus due to military noise exposure. Moreover, at his
July 2007 hearing, the veteran asserted that his post-service
noise exposure had been mischaracterized by the examiner.
His job as a truck driver was in the equivalent of a panel
truck, not a noisy big rig, and the factory work was as a
designer and metal cleaner, not with heavy equipment. He
also notes that he went target shooting only 10 or so times
over the course of the 30 years since service. He also
asserts that the examiner misunderstood a response, and he
did wear hearing protection after service, but not in
service. The Board notes that the combat presumptions of
38 C.F.R. § 3.304(d) are applicable here. The veteran
participated in combat, as shown by his receipt of the Purple
Heart and Combat Infantry Badge. This means that his
statement regarding loss of hearing for several weeks after
the nearby explosion of a satchel charge must be accepted. A
puncture injury to the right ear drum is already established.
Additional development is required to obtain clarification of
the examination findings and explanation of any possible
inconsistencies.
Coronary Artery Disease
A VA doctor opined in November 2005, based apparently on her
November 2004 Agent Orange Registry examination, that
coronary artery disease (CAD) was less likely than not due to
diabetes because CAD preceded diabetes. On the November 2004
examination, she noted a brief history of diabetes mellitus
starting in 1999, and a myocardial infarction in 1998, with
hypertension since 1996. The doctor did not review the
claims file or any medical records in connection with either
the examination or later opinion.
The evidence of record clearly demonstrates that the history
cited by the doctor and relied upon in forming an opinion was
incorrect. The veteran was diagnosed with diabetes mellitus,
type II, in February 1996, and the disease was not well
controlled. Medication was prescribed in January 1998. The
veteran was also on blood pressure medication beginning in
June 1996. It was not until September 1998 that CAD is noted
as a diagnosis, following the veteran's heart attack. Two of
the veteran's private doctors have indicated current coronary
artery disease may be related to the veteran's diabetes. A
new VA examination is required in order to obtain an opinion
regarding any relationship between CAD and diabetes, based on
the correct medical history.
Accordingly, the case is REMANDED for the following action:
1. Schedule the veteran for a VA
audiological examination. The examiner
must review the claims file in connection
with the examination. The examiner should
opine as to whether it is at least as
likely as not that current left ear
hearing loss is related to in-service
combat noise exposure, including a nearby
satchel charge explosion. A complete
explanation of all rationale in rendering
such opinion is required, and must address
the evidence of in-service injury as well
as post-service noise exposure.
2. Schedule the veteran for a VA heart
examination. The examiner must review the
claims folder in connection with the
examination. The examiner should opine as
to whether, in light of the corrected
timeline, it is at least as likely as not
that current coronary artery disease was
caused or aggravated by service connected
diabetes mellitus, type II. A complete
explanation of all rationale is requested.
3. The RO should review the claims file
to ensure that all of the foregoing
requested development is completed, and
arrange for any additional development
indicated. The RO should then re-
adjudicate the claims on appeal. If any
benefit sought remains denied, the RO
should issue an appropriate SSOC and
provide the veteran and his representative
the requisite period of time to respond.
The case should then be returned to the
Board for further appellate review, if
otherwise in order. No action is required
of the appellant unless he is notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs